Tamil Nadu

North Chennai

167/2014

V.S.Madurai Muthu,S/o V.Shanmugan - Complainant(s)

Versus

Aiswarya Foundation ,rep by its partner, - Opp.Party(s)

S.C.Viswanath

22 Nov 2017

ORDER

 

                                                            Complaint presented on:  25.07.2014

                                                                Order pronounced on:  22.11.2017

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

        PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

              THIRU. M.UYIRROLI KANNAN B.B.A., B.L.,      MEMBER - I

 

WEDNESDAY THE 22^nd DAY OF NOVEMBER 2017

 

C.C.NO.167/2014

 

 

V.S.Madurai Muthu,

Son of V.Shanmugam,

Old No.73, New No.2,

Vivekanadan Street,

Lakshmipuram,

Chennai – 99.                                                           ….. Complainant

 

..Vs..

Aishvarya Foundation,

Represent by its Partner,

A.C.Senthil Kumar,

No.12-C, Raghavan Nagar ,

Kodungaiyur, Chennai – 118.

.....Opposite Party

Date of complaint                                 : 26.08.2014

Counsel for Complainant                      : S.C.Vishwanth & Lokesh

Counsel for Opposite Party                      : R.Ilanchizhian & S.Chinnasamy      

 

 

 

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant to pay compensation for pending work and deficiency in service and for mental agony with cost u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The complainant  is the absolute owner of the property situated in S.No.1471/1C4, Kolathur Village, Old Door No.73, New No.2, Vivekanadan Street, Lakshmipuram, Chennai – 99 to an extent of 336 sq.ft of land, along with 1/3 rd share in passage of land leading to Vivekanadha Street. The complainant and the opposite party entered into a contract agreement dated 03.03.2012 to construct a building in complainant land with an agreed rate of Rs.1200/- per square feet for the ground and first floor.

          2. As per the agreement, the total construction area of land is 336 square feet. The consideration was fixed at Rs.1200/- per square feet and total sum of Rs.4,03,200/-  The entire time limit for the project has been fixed as 120 days from the date of commencement of the advance amount with effect from 03.03.2012. The opposite party also received the amount and made endorsement on the agreement itself. It is more pertinent to state here that the opposite party had received an additional sum of Rs.64,100 from the complainant contrary to the agreement.

 

          3. The following are the negligence committed by the opposite party in carrying out the works in the building:

1. A portion of bed room roof has fallen down remain plastered and not painted
2. The plastering of the entire building is not coming out.
3. Cracks have developed throughout the building
4. The cement shelf in the living room is projecting out without any link with the wall, which may fall upon children at any time.
5. The wall in the kitchen has developed visible big and lengthy crack
6. Due to poor mixing of cement and addition of more sand, the entire plastering of the walls of the entire building  is about to fall.
7. The entire building is not painted but only white washed (not colour washed)
8. Instead of using the patak wood, ordinary flex door is fixed in the bed room.
9. Instead of the assured verified tiles, ordinary ceramic tiles are used.
10. Instead of using RV Kanizhq TMT Bars, only ordinary inferior bars are used throughout.

 The complainant estimate the cost of finishing the unfinished work by the opposite party is rounded to Rs.5,30,000/-. The complainant issued legal notice to the opposite party on 25.03.2014 to pay the compensation. However, the opposite party had never come forward to settle the issue.  Hence this complaint.

4. WRITTEN VERSION OF THE  OPPOSITE PARTY IN BRIEF:

          The complainant approached the opposite party to develop his property which comprises  an extent of 336 square feet and executed an agreement on 03.03.2012 with the time frame of 120 days from the date of commencement.   The opposite party has completed the work on 16.08.2012 which has been acknowledged by the complainant in the contract. Moreover the excess amount of Rs.64,100/- have been charged for extra work for extending Roof Slab which is not part and parcel of the contract, that can be proved by the opposite party. The extra work has been mentioned in the back side of original agreement and the same have been acknowledged by the complainant, on the contrary he has suppressed the fact and claims the same.

          5. The opposite party further states that, only upon satisfied the work of the opposite party, complainant has given other part work of complainant’s brother which comprises an extent of 826 sq.ft and for the same agreement  the work  started on 23.07.2012. The pending work was just the external painting, as adjacent portion of complainant’s brother work was in process. The  painting work was pending only was external and it was kept  pending due to work started to the adjacent  property of the complainant’s brother, if external painting is completed means it has to be repainted because the passage used is complainant’s building and the wall of the complainant’s  building is adjacent to the complainant’s portion. Opposite party cannot paint twice with one time cost. The list of negligence in this averments of para 9 is false as the complainant has the knowledge of work as he is staying nearby the construction area and well aware of each and every day activity.

          6. The total project as per the contract and as admitted by the complainant is Rs.4,03,200/- and Rs.64,100/- for extra work, but after completing the building with external painting work pending due to complainant’s brother’s property construction and have given the possession to the complainant on 16.08.2012, now on the intention of grabbing money complainant have made several attempts. On 18.07.2013 the complainant have given a police complainant with the false information and the same has been verified by police and was found false and so police have warned the complainant not to make false claims. External painting was the only job left out; it was also due to the problems created by the complainant only. The opposite party was very much ready to complete the work. The opposite party have carried out several external work done by the opposite party which were suppressed by the complainant and to carry such external work mentioned in para 10 of the written version, he had spent a sum of Rs.1,82,200/-. Hence this opposite party has not committed any deficiency in service and prays to dismiss the complaint with costs.      

7. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite party?

          2. Whether the complainant is entitled to any relief? If so to what extent?

8. POINT NO :1 

          It is an admitted fact that the complainant is the owner of the property situated in S.No.1471/1C4, Kolathur Village, Old Door No.73, New No.2, Vivekanandan Street, Lakshmipuram, Chennai – 99 to an extent of 336 sq ft and in the said land the opposite party agreed to construct a building to the complainant and accordingly both of them entered Ex.A1 contact agreement and in which it was agreed a construction cost of Rs.1,200/- per sq.ft and total cost of construction comes to Rs.4,03,200/-. The opposite party agreed to deliver in 120 days completing the building and the complainant also paid the entire amount and the payment were mentioned at page 3  of the contract agreement and after completion of the   construction, the building was also handed over to the complainant.

 

          9. The complainant alleged deficiencies are as follows:

1. A portion of bed room roof has fallen down remain plastered and not painted
2. The plastering of the entire building is not coming out.
3. Cracks have developed throughout the building
4. The cement shelf in the living room is projecting out without any link with the wall, which may fall upon children at any time.
5. The wall in the kitchen has developed visible big and lengthy crack
6. Due to poor mixing of cement and addition of more sand, the entire plastering of the walls of the entire building  is about to fall.
7. The entire building is not painted but only white washed (not colour washed)
8. Instead of using the patak wood, ordinary flex door is fixed in the bed room.
9. Instead of the assured verified tiles, ordinary ceramic tiles are used.
10. Instead of using RV Kanizhq TMT Bars, only ordinary inferior bars are used throughout.

He further contended that as per the agreement the opposite party has not provided the materials for construction of the building and he used poor quality and further apart from the agreed amount, the complainant also paid an extra amount of Rs.64,100/- to the opposite party and inspite of that the opposite party committed several deficiency in the building.

          10. The opposite party would contend in his written version that he had done several extra work outside for a value of Rs.1,82,200/- and in respect of the extra work done by him, has been mentioned in the back side of the original agreement  and the same have been acknowledged by the complainant and the complainant  had not paid the amount for the extra work done by him and therefore he had not committed any deficiency in service.

          11. At page 3 of the Ex.A1 agreement the payments made by the complainant was received by the opposite party by making necessary endorsement. As per such endorsement the complainant made a payment of Rs.4,67,300/- against the agreed amount of Rs.4,03,200/- and in the result the complainant  paid a sum of Rs.64,100/- is excess to the opposite party has been proved by him and also accepted.

          12. The opposite party pleaded in his written version para 4 that the excess amount of Rs.64,100/- have been charged for extra work for extending the roof slab which is not part and parcel of the contract and apart from that he had also done several external work for the value of Rs.1,82,200/- as mentioned in para 10 of the written version. The opposite party filed Ex.B3, copy of the agreement executed between the parties. No extra work in Ex.B3, has been mentioned on the back side of the agreement as alleged by the opposite party. Therefore, it is clear that for the excess amount of Rs.64,100/- received by the opposite party had not done any extra work by him.

          13. The additional external work alleged to have done by the opposite party has not been supported by any evidence by way of proof affidavit by the concerned person. Ex.B6 is the list prepared and filed by the opposite party to show that he had done additional work.  However no proof filed to show that bills for the materials purchased to carry out additional work have been filed. Therefore, it is held that the opposite party has not proved the additional work or external work done by him.

          14. In respect of the deficiency alleged by the complainant the opposite party himself admits that the painting work was pending, since adjacent property work is going on and only after completing the same it could be done. However, the fact remains that the opposite party admits that he had not done the painting work to the complaint building are deficiency on his part. Apart from that the materials agreed to be used in the contact agreement have not been used by the opposite party to construct the building and on the other hand the opposite party used some other materials is also a deficiencies. Therefore, we hold that the opposite party have committed deficiency in service in constructing the building to the complainant and also collected an excess amount of Rs.64,100 from him.

15. POINT NO:2

          The opposite party has collected an excess amount of Rs.64,100/-. He has no right to with hold the same and hence, he is liable to refund the said sum to the complainant. Apart from that the opposite party himself admitted that he had not done the painting work. Some materials used were not agreed in the agreement for construction. However, in painting and using other materials to arrive the value no evidence is available. Hence considering the circumstances of the case, it would be appropriate to order a sum of Rs.25,000/- towards compensation for not painting the work and other and also for mental agony besides a sum of Rs.5,000/- towards litigation expenses.

          In the result the Complaint is partly allowed. The Opposite Party is ordered to refund a sum of Rs.64,100/- (Rupees sixty four thousand one hundred only)  towards the excess collection  amount to the Complainant and also to pay  a sum of Rs. 25,000/- (Rupees twenty five thousand only) towards compensation for  painting and other work and for mental agony, besides a sum of Rs. 5,000/- (Rupees five thousand only)  towards litigation expenses.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 22^nd day of November 2017.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 03.03.2012                   Agreement

Ex.A2 dated NIL                     Family Ration Card

Ex.A3dated NIL                      EB consumption charge

Ex.A4 dated 20.07.2013                   CSR copy

Ex.A5 dated 25.03.2014                   Legal Notice

Ex.A6 dated NIL                     Photos

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :

 

 

Ex.B1 dated 10.02.2016                   Representation power to the partner

 

Ex.B2 dated NIL                     List of customers

 

 

Ex.B3 dated NIL                     Agreement executed between both complainant

                                                     and opposite party

 

Ex.B4 dated 05.07.2012                   Tiles purchased bills

 

Ex.B5 dated 07.03.2012                   TMT bars purchased bills

20.04.2012, 03.05.2012

 

Ex.B6 dated NIL                     List and cost of additional works

 

 

 

MEMBER – I                                                               PRESIDENT